Alexandros Kouidis v. Greece

The author of the communication is Alexandros Kouidis, a Greek citizen born on 21 May 1950, currently serving a life sentence at the Court Prison of Kerkyra in Corfu. He claims to be a victim of violations by Greece of articles 7; 10, paragraph 1; and 14, paragraphs 3 (g) and 1, of the International Covenant on Civil and Political Rights (the Covenant). The author is represented by counsel.

The Covenant and the Optional Protocol entered into force for the State party on 5 August 1997.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its Rules of Procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.

The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for purposes of article 5, paragraph 2 (a) of the Optional Protocol. The Committee takes note of the State party's objection that the communication is inadmissible ratione temporis, as it relates to events which occurred prior to the entry into force of the Optional Protocol for Greece on 5 August 1997. The Committee refers to its prior jurisprudence and reiterates that it cannot consider alleged violations of the Covenant which occurred before the entry into force of the Optional Protocol for the State party, unless these violations continue after that date or continue to have effects which in themselves constitute a violation of the Covenant⁶. The Committee has found continuous violations where States, by act or by clear implication, have affirmed previous violations after the Optional Protocol entered into force⁷. The Committee observes that the author’s claims under article 10, paragraph 1, refer to his arrest and pre-trial detention in 1991, i.e. before the entry into force of the Optional Protocol for the State Party, and finds this part of the communication inadmissible ratione temporis pursuant to article 1 of the Optional Protocol. The author’s claims under article 7 equally refer to the above-mentioned detention period and to the continuous effects of the treatment he was subjected to. The author has not substantiated his claim that any continuous effects of the treatment would in themselves constitute a violation of the Covenant and thus meet the requirement of the test set out in para. 6.3. The Committee therefore finds that the claim under article 7 read alone is inadmissible ratione temporis under article 1 of the Optional Protocol. However, the Committee notes that although the author was convicted on appeal on 4 November 1996, i.e. before the entry into force of the Optional Protocol for the State party, the judgment of the Supreme Court upholding the Appeal Court judgment was issued on 3 April 1998, after the Optional Protocol came into force. The Committee reiterates its jurisprudence that a second or final instance judgment, confirming a conviction, constitutes an affirmation of the conduct of the trial⁸. The claims under article 14, paragraphs 3(g) and 1, refer to the conduct of the trial, which continued after the entry into force of the Optional Protocol for the State party. The Committee concludes that it is not precluded ratione temporis from considering the communication insofar as it raises issues relating to the author’s trial. With respect to the State party’s argument that the author did not exhaust domestic remedies in relation to his torture claims, and considering these claims as arising under article 7 read in conjunction with article 14, paragraph 3(g), the Committee notes that the judgment of the Appeal Court specifically mentions the author’s statement that he was “beaten without mercy” by the police and concludes that the State party was aware of the author’s claims of ill-treatment at the time of the trial, and finds that the author has exhausted domestic remedies in that respect. The Committee concludes that the communication is admissible insofar as it raises issues under article 7 in conjunction with article 14, paragraph 3(g), and 14, paragraph 1, read alone, and proceeds to its examination on the merits.

6. See Communication No. 520/1992, Könye and Könye v. Hungary, Decision on admissibility of 7 April 1994, para. 6.4; Communication No. 24/1977, Sandra Lovelace v. Canada, Views adopted on 30 July 1981, para. 7.3. ↩
7. See Communication No. 1033/2001, Nallaratnam Singarasa v. Sri Lanka, Views adopted on 21 July 2004, para. 6.3; Communication No. 520/1992, E. and A.K. v. Hungary, Decision on admissibility of 7 April 1994, para. 6.4; Communication No. 593/1994, Patrick Holland v. Ireland, Decision on admissibility of 26 October 1996, para. 9.2 ↩
8. See Communication No. 1033/2001, Nallaratnam Singarasa v. Sri Lanka, Views adopted on 21 July 2004, para.6.3 ↩

On the claim under article 14, paragraph 3 (g) read alone, the Committee notes the Supreme Court was aware of the allegations of ill-treatment. The Committee considers that the obligations under article 14, paragraph 3(g) entail an obligation of the State party to take account of any claims that statements made by accused persons in a criminal case were given under duress. In this regard, it is immaterial whether or not a confession is actually relied upon, as the obligation refers to all aspects of the judicial process of determination. In the present case, the State party’s failure, at the level of the Supreme Court, to take account of the author’s claims that his confession was given under duress, amount to a violation of article 14, paragraph 3(g).

On the claim under article 14, paragraph 1, that the trial and conviction was based inter alia on the author’s confession, the Committee notes the State party’s argument that the courts did not base their judgments on the author’s confession. The Committee reiterates its jurisprudence that it is primarily for the courts of State parties to review facts and evidence in a particular case. It is for the appellate courts of State parties, and not for the Committee, to review the conduct of the trial, unless it can be ascertained that the evaluation of evidence was clearly arbitrary or amounted to a denial of justice, or that the judge manifestly violated his or her obligation of impartiality¹¹. It appears that the author’s trial does not suffer from any such defects. Accordingly, this part of the communication does not reveal a violation of article 14, paragraph 1. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose violations of article 14, paragraph 3(g), of the Covenant. In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including the investigation of his claims of ill-treatment, and compensation. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its Views. The State party is also requested to publish the Committee’s Views. [Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]

11. See Communication 838/1998, Ola Hendricks v. Guyana¸Views adopted on 28 October 2002, para.6.2 ↩